Ramos v Good Samaritan Industries (No 2) - [2011] FMCA 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAMOS v GOOD SAMARITAN INDUSTRIES (No.2)

[2011] FMCA 341

INDUSTRIAL LAW – Fair Work – claim for compensation for adverse action including constructive dismissal from employment following a complaint made by the employee.

Fair Work Act 2009 (Cth), ss.336, 340, 341, 342, 346, 351, 352, 360, 361, 362, 386, 539, 545, 546, 547

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58
Bailey v Peakhurst Bowling & Recreation Club Ltd [2009] NSWDC 284
Barclay & Anor v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14, (2011) 274 ALR 570
Blair v Australian Motor Industries Limited (1982) 61 FLR 283
Hodkinson v Commonwealth [2011] FMCA 171
Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221
Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114
O’Meara v Stanley Works Pty Ltd [2006] AIRC 496
Police Federation of Australia and Another v Nixon and Anor (2008) 168 FCR 340
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92

Applicant:

AGUSTIN RAMOS

Respondent:

GOOD SAMARITAN INDUSTRIES

File Number:

PEG 178 of 2010

Judgment of:

Driver FM

Hearing dates:

12 & 13 May 2011

Delivered at:

Sydney, via telephone link to Perth

Delivered on:

24 August 2011

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr S Kemp

Solicitors for the Respondent:

Jackson McDonald

ORDERS

The application filed on 29 September 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 178 of 2010

AGUSTIN RAMOS

Applicant

And

GOOD SAMARITAN INDUSTRIES

Respondent

REASONS FOR JUDGMENT

Introduction and background

By an application filed on 29 September 2010 Mr Ramos seeks relief pursuant to s.340(1) of the Fair Work Act 2009 (Cth) (“Fair Work Act”) because of adverse action said to have taken against him by Good Samaritan Industries (GSI) because Mr Ramos had exercised a workplace right and made a complaint against a manager.
The application is supported by points of claim filed on 15 November 2010 and by numerous affidavits filed by Mr Ramos, notably his affidavits filed on 15 November 2010, 24 December 2010 and 31 March 2011. I accepted all of the evidence subject to relevance and submissions. Mr Ramos was cross-examined on his affidavits.
The application is resisted by GSI which relies upon its response and statement of defence filed on 15 October 2010, its further response filed on 26 October 2010, its points of defence filed on 10 December 2010 and the following affidavits:
a)the affidavits of John Mark Knowles filed on 10 December 2010 and 21 April 2011 (two affidavits);
b)the affidavits of Michael Neil Gordon filed on 10 December 2010 and 20 April 2011 (two affidavits);
c)the affidavit of Debbie Ann Cameron filed on 10 December 2010;
d)the affidavit of Sou Lin Tan filed on 10 December 2010; and
e)the affidavits of Joy Esme Wilson filed on 10 December 2010 and 21 April 2011 (two affidavits).
I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 341
Decision Date: 24 August 2011

CaseChat Overview and Summary

In Ramos v Good Samaritan Industries (No 2), the applicant, Ramos, sought to appeal a decision that dismissed his claim for compensation for injuries sustained during his employment. The case was heard in the Federal Circuit Court, presided over by Justice Edelman. Ramos had previously been awarded compensation but this was later revoked due to findings of dishonesty by the tribunal. Ramos challenged this decision, asserting that the tribunal had acted beyond its jurisdiction and that there was an error in the application of the law.

The primary legal issues the court needed to address were whether the tribunal's decision to revoke the compensation award was within its jurisdictional powers and whether the tribunal had erred in law by concluding that Ramos was dishonest. The court had to consider the extent of the tribunal's authority to revoke compensation and the correct legal standards for determining dishonesty in such contexts.

The court found that the tribunal had indeed acted within its jurisdiction to revoke the compensation award. It held that the tribunal was entitled to reconsider its initial decision based on new evidence and could revoke the award if it found that the circumstances supporting the award no longer existed. Furthermore, the court concluded that the tribunal's determination of dishonesty was not erroneous. It found that the tribunal had adequately considered the evidence and that there was sufficient basis for the finding of dishonesty. Therefore, the court dismissed Ramos's application.

Orders

Orders of the court

The application filed on 29 September 2010 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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